Dear Monty: Listing agent fumbles — can I cancel contract?

Richard Montgomery More Content Now

Tuesday

Sep 18, 2018 at 8:46 AMSep 18, 2018 at 8:46 AM

Reader Question: I listed my property a few weeks ago. There have been two showings scheduled with my agent, and both went very wrong. She scheduled the appointment with one prospect (who drove from out-of-state to be told she doesn’t work on weekends) and did not appear at either showing and did not call to say she could not be there. I provided the information the prospects needed for both showings. She has done nothing. I did not know that she didn’t work weekends, or that she would miss the first two appointments. This doesn’t look good. What legal rights do I have in this? Can I cancel the contract?

Monty’s Answer: It is unclear if the agent is the principal broker of the company or an agent of the principal broker. A listing contract requires the broker to place the client’s interests ahead of their own. The agreement is not with the agent, but with the company or broker-owner. Most brokers have established protocols to deal with customer complaints about their independent-contractor agents. One of those protocols involves a cancelation and mutual release agreement. There are other options available to relieve your qualm. At this juncture, the broker may not even be aware of the situation.

Assuming your agent is not the broker, consider taking these steps:

Step One: Call the agent and set an appointment to meet with her in person. Avoid the telephone as a venue. A personal conversation at her office increases the chances of a satisfactory resolution and heightens the importance of your complaint. Try to meet during regular business hours.

Step Two: Go to the meeting with notes similar to what you outlined in your question above. Start with a rule to allow you to state your position and how her actions made you feel without interruption. Remind her of the rule if she interjects. When you have finished, then allow her to respond. As the agent answers, let her finish without interruption and write down your thoughts as she speaks on your outline to stay on track.

Step Three: When she finishes responding, give her your feedback. When she agreed to the listing, she decided to put your interests ahead of her own. Specifically, she did not attend an appointment to show the property to a prospect. She did not call to alert you, or the prospect, that she could not participate, and she immediately did it twice.

Step Four: At this point in the meeting, she may apologize and agree not to miss another appointment. She may become defensive and continue to insist on not working weekends. You can decide if you want to give her another chance or ask for a mutual release from the listing. If you’re going to give her another chance, she should agree she will work when the prospect wants to see the property on weekends and be on time for her appointments. Your best option here is to stay calm and in control.

Assuming you get agreement on your expectations, organize your agreement notes in an email when you get home. Send that email confirming your understanding of the conversation and ask the agent to respond by a specific date if her recollection is not the same. It is possible that this meeting may change her behavior and eliminate your concerns.

Strategy with the brokerIf the meeting was ineffective, your next move is to call again, but call the designated broker and set up a meeting with that person. If the broker cooperates, repeat steps 2 and 3. If the broker balks or defends the agent, then change your tactics (you can also skip everything I have suggested above, and implement one or more of the other tactics below:

— Request a different agent.— Request the cancelation and mutual release agreement. — While the above process requires effort on your part, it sets up an amicable parting of the ways as the broker is likely to appreciate your position. If the broker does not react positively, another option is to suggest that you will file a complaint with the state’s real estate commission. Brokers do not want consumers to do this. It is bad for business, company moral, and may create publicity they do not wish to have in the public domain.

In the event, your agent is the principal broker, and another chance is unacceptable, and she refuses to provide a mutual release, skip to the last bullet point.— Richard Montgomery is the author of “House Money - An Insider’s Secrets to Saving Thousands When You Buy or Sell a Home.” He is a real estate industry veteran who advocates industry reform and offers readers unbiased real estate advice. Find him at DearMonty.com.

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